In the last post of this series, we looked at the CRTC’s “Measuring Broadband Canada” report, which we branded as a flawed and limited evaluation of the broadband speeds across Canada. We deemed the report a narrow validation of the speeds available to the subset of consumers who enjoy mid- to high-tier plans within (sub)urban areas. Our deep dive into the report raised serious questions about whether Canadians, especially rural and remote consumers, are actually getting the speeds they pay increasingly higher prices for.
Well for one thing, we pay for the speeds that are advertised to us. But from experience, we all know the Internet speeds we actually experience on our devices vary throughout the day, and don’t necessarily meet the speeds promised to us in our service contracts.
This second installment of our Canadian broadband blog series looks at how other jurisdictions like the UK and Australia have recently overhauled their regulations surrounding how ISPs advertise and sell broadband services, and illustrate the informational gap that Canadian consumers face when shopping for broadband services.
Canada: Bill C-299 – A Faint Hope?
This blog post is particularly timely, as in early June, Conservative MP Dan Mazier tabled Bill C-299, a Private Member’s bill that shines a long overdue spotlight in the House of Commons on the continuing mismatch between what consumers expect and receive when shopping for home Internet services. If passed, the bill would require “Canadian carriers” (which includes only the largest ISPs) to advertise the quality and speed of fixed broadband services and any required ancillary matters of what they sell, all according to criteria specified by the CRTC through public consultations. The Bill then lists several factors which it requires the CRTC to include as part of its eventual methodology, including:
(a) the service quality metrics that are to be measured and how they will be measured, as well as the methodology that is to be used to ensure that those metrics are representative of the different fixed broadband services packages offered in different regions across Canada;
(b) the methodology that is to be used to determine what constitutes typical download and upload speeds for different fixed broadband services packages offered in different regions across Canada;
(c) the periods that are to be considered peak periods;
(d) the types of Canadian carriers, if any, that should be excluded, in whole or in part, from the application of [the advertising rules];
(e) the types of transmission systems in respect of which the information referred to in [the advertising rules] is to be provided; and
(f) the form and manner in which the information referred to in [the advertising rules] is to be provided to the public to ensure that it is easily available, accessible and simple to understand.
While this list is good guidance for the CRTC, it is silly to make only the largest ISPs subject to the rules (we think that all ISPs should be able to follow these rules) and the bill allows 3 years until implementation. This is too long: In the UK, the regulators were able to conduct research and a public consultation in 2016/2017, release findings and guidance in 2017, which took effect 6 months later in 2018.
Canadians contend with an advertising free-for-all when shopping for broadband services
Broadband advertising in Canada presently is subject only to laws of general application under the federal Competition Act, provincial consumer protection laws, and the self-regulatory Code of Advertising Standards. For all industries, the Competition Act generally prohibits false or misleading representations promoting the supply or use of a good or service. The Act also prohibits performance claims that are not based on adequate and proper tests – the onus then, if challenged by the Competition Bureau, is on the person making the claim to show the data from these tests.
How about industry standards? The Advertising Standards Canada is a self-regulating body that administers the industry-created Canadian Code of Advertising Standards, which sets criteria for advertising that is truthful, fair and accurate. However, the ASC claims they have received very few complaints about broadband speed advertising and have only ever found one single violation of their standards in relation to broadband.
Measurement Canada, meanwhile, is an agency with its own Act that says it acts “under its core responsibility of providing ‘fair measures for all’” and typically regulates might appear to be a logical place to regulate broadband, however, despite the fact it regulates measurement of other essential services like gas, this agency has assiduously avoided wading into broadband speed measurement and will be unlikely to reconsider without a new legislative mandate.
None of these laws or codes, therefore, help to set any standard of testing or transparency by which retail broadband ads must adhere. There is nothing about how and when advertised speeds are tested, nor any rules that require ISPs to provide consumers with clear, upfront information about how advertised speeds won’t necessarily be the speeds consumers get, which subsequently bars consumers from remedies when they don’t get those speeds. In this respect, Canada is seriously lagging behind other jurisdictions like the UK, Australia, and Germany, who have all in recent years implemented very clear and specific guidelines for advertising retail broadband services.
In the UK, advertising is primarily regulated through a system of self-regulation, including rules that the ad industry writes and must adhere to. Written by the self-regulatory Committee of Advertising Practice (CAP), one of these codes is called the CAP Code, which regulates non-broadcast advertising, sales promotion, and direct marketing. The Committee itself is administered by the independent Advertising Standards Authority (ASA), which is a self-regulatory trade body that enforces the Advertising Codes written by committees like the CAP. The CAP Code requires that all non-broadcast marketing communications should be legal, decent, honest and truthful; should not cause serious or widespread offence; exploit a consumer’s inexperience; mislead, cause fear or distress; or condone or encourage unsafe practice or violence. According to the CAP Code, all claims must be substantiated before being published or aired, that is, marketers must have evidence to prove claims that consumers would view as objective. Besides the self-regulatory code, advertising is also governed by the Consumer Protection and Unfair Trading Regulations 2008, which dictates that advertisers cannot mislead or harass consumers by including false or deceptive messages, leaving out important information, or using aggressive sales techniques.
While these general rules apply to broadband advertising, the ASA saw the need to impose specific rules in 2018 about advertising residential broadband services. The basis of these specific rules was that, according to the Committees of Advertising Practice, “speed claims should be based on the actual experience of users and therefore marketers should be able to demonstrate that the speeds in their advertising can be achieved by a reasonable proportion of the provider’s customers.” The new 2018 rules came out of a significant consultation process involving major ISPs, Ofcom, and consumer groups. That consultation established, among other principles, the most meaningful metric of advertised speed according to consumers: median peak-time download speed. This means that advertised broadband speeds should represent the average achievable speed for at least 50% of the relevant customer base during the peak period of 8pm to 10 pm. This new benchmark marked a change from the ASA’s previous guidance that advertised speeds can be represented as “up to” a certain speed, measured over a 24-hour period and available to at least 10% of customers.
According to the new guidelines, factors that may affect the consumer’s ability to achieve the advertised speed must also be communicated clearly and prominently in ads. Factors include signal attenuation, congestion/contention, Traffic/network management practices, protocol overheads, users’ distance from the mobile mast, and environmental obstructions between the user and mobile mast (“clutter”). Advertisers must also further qualify the service if a factor may cause a significant proportion of customers to receive a speed so much lower than advertised that it prevents types of online activity that customers might reasonably expect to undertake at the advertised speed.
Regarding point of sale practices, the UK’s communications regulator, Ofcom, revised their Voluntary Codes of Practice on Broadband Speed in 2018. The revised code requires that providers must show a broadband service’s Minimum Guaranteed Access Line Speed (MGALS) at point of sale, rather than upon request as previously required. If the speed received at the customer’s doorstep falls below the MGALS, providers are given 30 days to resolve the problem before the customer must be allowed to exit their contract, penalty-free. The revised code also provides that ISPs must be upfront about what speeds customers can expect during the 8pm to 10pm peak period. Though this code is voluntary and complementary to the ASA advertising guidelines, several major broadband providers in the UK have agreed to support the changes (Virgin Media, Sky Broadband, TalkTalk, and others).
But the question is, did all these new rules make any difference in broadband advertising? Did the ISPs in the UK actually follow these guidelines? Yes, it did, and yes, they did. After these new rules were introduced, nearly every ISP in the UK reduced their advertised broadband speeds. Across all packages up to 100 Mbps, advertised speeds from the 12 biggest providers in the UK dropped by 15%. One company, TalkTalk, completely eliminated speed claims from their advertising. Advertised speeds of the cheapest deals dropped by up to 41%. Reflecting the shift to averaged speed claims, Sky Broadband changed their marketing for a service from “up to 17 Mb” to an “average 10Mb download speed.” BT Superfast Fibre Unlimited went from “up to 52Mb” to “average 50Mb download speed, and TalkTalk went from “up to 76Mb” to “average 63Mb download speed.”
In 2020, Virgin Media formally brought a challenge to the ASA against a BT Broadband ad for FTTP broadband service. The ad in question claimed that BT’s FTTP product in Bristol would provide more reliable speeds than Virgin’s services in the same area. Virgin argued that BT’s claims were not representative of the target audience and area, pointing to the 2018 guidelines which state that campaigns targeting specific areas should use data from tests carried out in that area. The ASA agreed, finding that although recent Ofcom studies showed that nationally, BT’s fibre speeds were indeed more reliable than those of Virgin’s services at the time, the local ad was misleading because it did not qualify that the claim was based on national data. This ruling was a prime example of how specific rules on broadband advertising help ISPs keep each other accountable while competing for customers. If ISPs wanted to splash their ads with lofty claims and comparisons, then the only way to do so is to actually back those claims with evidence, or to improve their services if they cannot. In the end, consumers win.
In Australia, advertising practices are governed by the Australian Consumer Law (ACL), which was introduced in 2011 and is contained in the Competition and Consumer Act 2010. The ACL prohibits misleading or deceptive conduct, false or misleading representations in the form of consumer guarantees, the nature of goods and services, and bait advertising, etc. The Australian Competition and Consumer Commission (ACCC) and each state/territory’s consumer protection agency administers the ACL. The ACL provides for guarantees that the provision of services, including broadband services, will be with due care and skill, are fit for the purpose and are provided within a reasonable time.
In 2017, the ACCC published its first guide for retail service providers on how to advertise speeds for fixed-line broadband services. The guide sets out 6 key principles that apply to broadband speed and performance ads. In summary, these principles provide that broadband consumers should have accurate information about the typical speeds that a customer can expect to receive during the busy period of 7 pm to 11 pm, and that service providers have systems in place to diagnose and resolve speed issues. Additionally, factors potentially affecting performance, and uses that trigger traffic throttling should be accurately and prominently disclosed at point of sale and throughout the contract.
And the ACCC has not rested on its laurels. In 2020, the ACCC initiated another consultation on proposed improvements to its 2017 guide, in light of the greater prevalence of high-speed plans offering over 100 Mbps in download speeds. The improvements, implemented on October 29, 2020, caution advertisers against creating unrealistic expectations based on ads flaunting “burst speeds” that are available only for short periods of time, and to avoid broad marketing campaigns where high-tier speeds are not necessarily available to certain geographical markets. Another addition to the guide was to limit providers to using the lowest end of speed ranges if providers rely on wholesale specifications for off-peak speed information. Recognizing that higher speeds are attractive to online gamers, the ACCC also added that services advertised as suitable for online gaming should be able to deliver a high quality, low-latency gaming experience.
But again…Did all of this work? Again…yes, it did. After the 2017 guide was published by the ACCC, eight ISPs in Australia came forward in late 2017 and early 2018 with court-enforceable undertakings admitting they likely misled consumers about broadband speeds, and offered to compensate customers. For example, Telstra offered to remedy 42 000 customers for promoting NBN plans with specified max speeds that were actually not achievable in real-world conditions. Telstra admitted that it likely contravened the ACL by engaging in misleading/deceptive conduct, and making false/misleading representations. In its undertaking to the ACCC, Telstra detailed options for affected customers: refunds, changing plans, or exiting the contract without fee. Both UK and Australian experiences show that if regulators take a firm stance on proper advertising requirements, the ISPs will fall in line. Having specific rules in place empowers regulators to actually regulate ISPs. Case in point: The ACCC recently took two ISPs to court for making false claims about the speeds that customers could receive. The court ordered the two ISPs, Dodo and iPrimus, to pay a combined $2.5 million penalty for making the misleading claims, which were based on flawed measurement methodology that used only the fastest observed speeds, ignoring the slower speeds that many customers experienced
In 2017, the German broadband regulator Bundesnetzagentur changed broadband advertising rules so that ISPs can only advertise three metrics: minimum, normal, and maximum speeds. Under the new German framework, ISPs must ensure customers’ speed never falls below the minimum speed, the normal speed is available 90% of the time, and that customers get 90% of the maximum broadband speed at least once. Additionally, if ISPs in Germany fail for over 48h to deliver the speeds they’ve sold to a customer, the customer is free to switch to another ISP penalty-free.
Evidently, the regulators in other jurisdictions have woken up to the questionable advertising practices of their broadband service providers, and are proactively on the side of the consumers. In comparison, Canada’s regulatory silence speaks volumes about the lack of will from our regulators.
Through it seems difficult to imagine Canada’s ISPs voluntarily fessing up and remedying their past conduct like the ISPs did in Australia, if advertised speeds going forward are at least more accurate to the average experienced speeds, consumers can make more informed and economically relevant choices about their internet services. Currently, there are no real consequences for ISPs in Canada that fail to deliver on their advertised speeds, especially when no ISP is beholden to a standard for setting representative speeds in ads for broadband services.
A comparison of current ads shows that the proof is in the pudding
The informational gap in Canadian ads is best illustrated by comparing the advertised plans of two of Canada’s major ISPs (Bell and Rogers) with those of the top ISPs in the UK (BT and Sky Broadband) and Australia (Tangerine and Telstra). The ads from the latter two jurisdictions, as seen below, also demonstrate how ISPs have closely followed the new broadband advertising rules.
In the UK, both BT and Sky Broadband provide a guaranteed minimum average speed and range of estimated download speeds based on peak-time measurements, as required by Ofcom’s Voluntary Codes of Practice on Broadband Speeds (See Figures 1 – 4). In addition, both UK providers’ guarantee that a customer can sever their contract penalty-free if the customer’s speed falls below the minimum guaranteed speed and cannot be resolved within 30 days. All of this information is visible either on the face of the advertisement, or within a pop-up window that appears when a customer clicks on a link within the ad.
In Australia, even more information is provided to the consumer within the ad itself and in detailed fact sheets linked in the ad. The top broadband providers in Australia advertise their plans in terms of typical busy period speeds, and repeatedly indicate that these speeds may vary based on various factors. This information is ubiquitous and upfront on the websites – it is not hiding in footnotes, nor is it squirreled away further in the purchasing process (See Figures 5 – 11, below). For any remotely diligent customer viewing the available service plans, this information is very hard to miss.
Comparing the information provided in Canadian ads with those of the UK or Australia, it becomes apparent that we Canadian consumers are practically in the dark about the broadband services we buy. Where ISPs in the UK and Australia provide for guaranteed minimum average speeds and ranges based on measured peak period speeds, major Canadian ISPs still primarily advertise their services as “up to” a certain speed, or a range that is not openly substantiated by any measurement method (See Figures 12 – 13). Information about factors affecting download speeds is not presented up front, but rather in a footnote at the very bottom of the webpage, after scrolling past all package listings. Unlike the UK and Australia, there are no laws or codes that require Canadian ISPs to abide by specific standards for broadband ads, and therefore ISPs have no obligation to provide more than the bare minimum of information that is just enough for consumers to differentiate between plans.
Consumers need and deserve more accurate, practical information about their service speeds before they buy into a plan, not an aspirational speed that consumers realize after the fact is unachievable most of the time. Canadian ISPs have thus far escaped, by avoiding accurate speed guarantees, any obligation to allow consumers to exit or switch plans when speed issues persist. In effect, consumers cannot escape their contracts – not without tedious, escalating negotiations and major penalties – even when they realize they are not getting the speeds they paid for. The only other option is for consumers to submit complaints to the Commission for Complaints for Telecom-Television Services (CCTS) or the Competition Bureau, which does not guarantee a favourable resolution, and may take months to resolve. The advice the CRTC themselves gives to consumers is to simply switch providers (pointless where there is no competition), ring up customer service (with frustrating escalations up to a ‘manager’), or to contact the CCTS – a largely unhelpful set of suggestions compared to the remedies that the UK and Australian regulators have implemented. It is long overdue for Canadian regulators to impose standardized guidelines for retail broadband advertising in Canada.
In the last part of this blog series, we will discuss just how this can be done, including the question of whether we should advertise broadband services by speed in the first place. Meanwhile, please compare the broadband speed advertisements in the profiled countries versus those of Canadian ISPs (all ads accessed on 20 July 2021):
UK: BT (plans available in central London, postcode W2 2SZ)
Figure 1. The UK provider, BT, advertises their plans based on a guaranteed minimum speed and a range of typical download speeds. Clicking on “What these speed estimates mean for you” shows a window that details BT’s minimum speed policy. Though BT does not describe their broadband speed measurement methodology, they have indicated commitment to providing peak time speeds, by reference to their signing onto Ofcom’s Voluntary Codes of Practice on Broadband Speeds.
UK: Sky Broadband (plans available in central London, postcode W2 2SZ)
Figure 2. For the popular “Superfast” plan offered by UK’s Sky Broadband, the ad guarantees a minimum download speed, and describes a range of estimated download and upload speeds.
Figure 3. Clicking on the information icon beside “minimum guaranteed download” on BT’s plan ad (as seen in Figure 2) provides more information about the minimum speed policy, including eligibility for contract termination if speed issues are not resolved within 30 days. The info box also details how Sky Broadband calculates the advertised download and upload speeds.
Figure 4. The information box shown in Figure 3 also further details the factors that potentially influence the customer’s speeds, and how Sky Broadband monitors broadband speeds.
Australia: Tangerine Telecom
Figure 5. The advertised National Broadband Network plans offered by Tangerine Telecom in Australia describes the “Typical Evening Speed” expected between 7pm and 11pm. The mouse-over text also lists factors that may affect this speed. Customers can also access further details by clicking on the “Critical Information Summary” and “NBN Key Fact Sheet” links, described in Figures 6 and 7 below. (https://www.tangerinetelecom.com.au/nbn/nbn-broadband)
Figure 6. The “Critical Information Summary” provides extensive details about each plan, including additional account fees, late payment and cancellation policies, and a disclaimer that the advertised speed refers to the speed to the installed technology at the customer’s premises, not necessarily the download/upload speeds achieved in practice. As seen above (in a section taken from the summary sheet), the Summary also describes factors that may limit the customer’s received speeds. Tangerine also explicitly provides that if a customer cannot achieve the typical speeds for their plan, Tangerine will move them to a lower tier and refund any money paid for the higher tier plan.
Figure 7. The “NBN Key Fact Sheet” compares speed and suitable uses between the service tiers offered by Tangerine. The Fact Sheet also details the factors that can affect Internet speed.
Figure 8. Telstra’s plans for broadband Internet, like Tangerine, describes the typical download and upload speeds between 7pm and 11pm, as well as the factors that may lower the experienced speeds. Where typical speeds are not available for FTTN connections, Telstra provides that speeds will be confirmed post-connection. (https://www.telstra.com.au/internet/plans#plans)
Figure 9. Clicking on “More on nbn speeds” within each Telstra plan pulls up a window providing more details on the typical peak speeds and suitable uses specific to the plan.
Figure 10. The Telstra website also includes a detailed info page about the factors that may impact the customer’s speeds, including the quality and location of the modem, as well as the condition of the customer’s in-premises wiring. (https://www.telstra.com.au/internet/nbn/nbn-speeds-explained)
Figure 11. Clicking on the “nbn speeds key facts sheet” link under each plan presents a detailed chart that compares Telstra’s broadband speed tiers and suitable uses depending on the number of people online at the same time.
Canada: Rogers Communications
Figure 12. In Rogers’ “Ignite Internet 50u” plan offering, the advertised download speed is “up to 50 Mbps.” Footnotes qualifying this speed can be found by clicking on “See Full Details” at the very bottom of the page. The 50 Mbps download speed is qualified with: “[a]ssuming optimal network, equipment and customer device conditions”.
Canada: Bell Canada